Book Chapter

Introduction

by Guyora Binder, Robert Weisberg

To lawyers, at least, the disciplines of the humanities and social sciences represent techniques for determining, representing, measuring, and summing desire. 

Law as Literature 

This book explores the uses of literary criticism in understanding and evaluating laws, legal institutions, legal arguments, and the decisions of legal actors. It identifies the sources and aspirations of this growing field of scholarship, explicates and evaluates its achievements, and recommends the most fruitful directions for future literary criticisms of law.

The Law and Literature movement emerged in the 1970s around the time that the rival Law and Economics movement was achieving notoriety. The early Law and Literature scholars set themselves the twin tasks of defending judicial discretion and informing its exercise with Kantian liberal values. They anticipated that both goals could be advanced by more closely linking law to literature. First, they characterized legal argument and judgment as interpretive activities necessarily affording their practitioners wide latitude for creativity, but nonetheless constrained by craft values that were ultimately aesthetic. Second, they identified these aesthetic concerns with an empathetic sensibility that could alert the good lawyer or judge to the effect of legal decisions on the personhood or dignity of parties. They offered this literary sensibility as a restraint on and reproach to what they saw as the heartless utilitarianism of the new legal economists.

The Law and Literature movement embraces two distinct forms of scholarship. What is often called Law in Literature scholarship is a species of conventional literary criticism and history that treats works of imaginative literature that contain legal themes or depict legal practice. This category of scholarship might seem at first to fall within the coverage of this book’s title—after all, Dickens’s Bleak House, in its searing portrayal of the British legal system, might be described as a “literary criticism of law.” But our book is solely about the second category of Law and Literature scholarship, often called Law as Literature. This scholarship employs the techniques and principles of literary criticism, theory, and interpretation to better understand the writing, thought, and social practice that constitute legal systems and offers these techniques and principles as tools for reforming those legal systems. Though only the latter body of work is the subject of this book, we will sometimes advert to the former, first because Law in Literature offers some general guidance about the intellectual impulses motivating the Law as Literature work we study here, and second because it illuminates the views of particular scholars who have contributed to both enterprises.

Many scholars have contended that reading great literature addressing legal problems can expand and enhance the moral sensibility with which we approach questions of justice. Some have applauded literature’s freedom, its independent vantage point to criticize authority, and its ethical value in inculcating a capacity for empathy. Arguably, the literary imagination can help us not only to conceive a new and better legal regime, but also to imagine what living under alternative regimes might feel like. Literature can offer a complex, multilayered experience that transcends rigid categories, alerting us to the plurality and dynamism of the meanings we attach to social life. And a literary perspective could thereby encourage the lawgiver to eschew mechanistic regulation in favor of an open-minded pluralism, to become an empathetic, inclusive, and imaginative architect of the common good. These kinds of claims are plausible and, in the hands of scholars like Thomas Grey,[1] have sometimes been developed with considerable insight and persuasive power.

But when the value of a literary sensibility to law is expressed in terms of the profit to be derived from reading imaginative literature, it is too easily inferred that the literary imagination can have no place in the actual practice, critique, and reform of law. The result can be a reductive view of law and an uncritical acceptance of imaginative literature’s hardly impartial self-portrayals. Consider two alternative formulations of the relationship between fiction and the criminal law in the nineteenth century, both offered by literary scholars. According to Wai Chee Dimock, the nineteenth century witnessed “something like a division of signifying labor: on the one hand, the impulse toward precision in the criminal law gave it an ever diminishing range of reference; on the other hand, the impulse toward amplitude in the novel gave it a continuing (or perhaps expanding) capacity for symbolization.”[2] Novels, concludes Dimock, offer an alternative scheme of justice; they provide “an echo chamber with a far more complex series of resonances than do their counterparts in the criminal law.”[3]

Perhaps the law is indeed myopic while literature is subtly perceptive; but according to Tony Sharpe, literature has not always demonstrated this subtlety of perception in its portrayal of the law,

which sometimes borders on travesty. Here I am . . . concerned . . . with texts in which legal methodology is implicitly compared to literature’s ways of working: a comparison which tends to construct law as an inflexible system, largely incapable of the subtle or even magical discriminations possible in fiction. . . . Law is thus constituted as a process by which meanings are excluded, and literature as one by which they may be licensed.[4]

Sharpe invites us to see law and the novel as rival professional discourses in the nineteenth century, and to greet the latter’s testimony about the former skeptically. He hypothesizes that “when literature deals with law, it does so to confirm its own advantage as a means of dealing with reality ... by taking a partial or distorted view of law’s premises, operations and consequences.”[5] The more we credit the possibly self-serving claims of imaginative writers to a monopoly on insight, the less we may learn about the insights to be derived from the use of literary methods and sensibilities in legal thought and practice.

Sharpe presents imaginative literature as a professional discourse, reminding us that literature is not only a kind of language, but also an institution with its own interests and jurisdictional turf. In treating literature as a kind of regime, Sharpe provokes us to see law not only as a rival to literature, but also as a dimension or aspect of literature itself. While we ordinarily think of law as the work of a particular profession, we may conceive law more broadly as an ordering function, a process of identifying, allocating, and contesting authority, that pervades all spheres of social life. In the same way, we may identify “the literary” narrowly with the work of a particular profession, or more broadly with imagination, complexity of perception, density of meaning, and the qualities of dramatic and aesthetic interest. If we conceive “the literary” in these broader terms, it becomes a meaning-making function that pervades social life. It is when we take law and literature in these broad senses that the relation between them becomes the richest and most interesting. Throughout this book, we will be asking the reader to keep in view these dual meanings of law and literature—as historically specific disciplines, and as the indispensable and inextricable cultural functions of defining authority and making meaning that these disciplines respectively strive, but fail, to monopolize.

The Law and Literature movement encompasses both efforts to break these monopolies and efforts to extend the domain of either one at the expense of the other. It is part of a larger profusion of interdisciplinary studies of society, particularly applying the methods of the humanities to subjects studied by the social sciences. All such interdisciplinary importations share an implicit logic. The host and guest disciplines are in one sense interchangeable—each can illuminate the same phenomena. Yet their powers of illumination differ in quality or quantity. The guest discipline can correct the host’s deficiencies, either improving it or displacing it altogether. To import literature into law is therefore to see the two enterprises as potential collaborators or competitors in the same enterprise. What assumptions are common to the diverse disciplines of the humanities and social sciences that allow them to compete against one another? What assumptions do we make about society when we view it as the common object of all these disciplines?

We probably follow Weber—or, more fashionably, Foucault—in assuming that there is some connection between the emergence of these disciplines of inquiry and the emergence of a “modern” bureaucratic and commercial society. In this spirit, our account of the Law and Literature movement proceeds on the basis of four premises, the usefulness of which we hope to demonstrate in the chapters that follow. We assume, first, that the disciplines that had achieved professional status by the end of the nineteenth century offered themselves as competing modes of apprehending modern society, or—insofar as they interested themselves in the ancient or the “primitive”—society’s evolution towards modernity. Second, that part of what is meant by “modernity” is the experience of social life as presented by these disciplines—the experience of work as economic activity, the experience of child rearing and of relationships as psychological processes, and so on. Third, that these disciplines, and the portrait of society they paint, play a role in social order or control. In other words, the disciplines ease the bureaucratic and managerial functions of the state and other institutions both by informing these institutions about the populations they regulate and by encouraging these populations to perceive themselves as institutions perceive them. Fourth, that the disciplines perform this dual function of disciplining both social investigators and the objects of social investigation, insofar as they are modes of apprehending subjectivity.

This at any rate is how lawyers and legal scholars see the disciplines they appropriate. Legal decisions turn on diverse representations of the will of legal actors: injunctions, intentions, consents, interests, meanings, needs, expectations and purposes, as well as rights, privileges, and competences. To lawyers, at least, the disciplines of the humanities and social sciences represent techniques for determining, representing, measuring, and summing desire. The “modern” society revealed by these disciplines is a field of competing and transacting subjects.

What does it mean to represent or experience this social field in a more literary way? To approach this question we need to locate literature and literary criticism within the broader enterprise of apprehending a society composed of such modern characters as citizens, bureaucrats, experts, merchants, consumers, investors, inventors, employees, members, partners, patients, spouses, gangsters, professionals and clients, debtors and creditors, immigrants, tourists, journalists, and candidates.

Placing literature within modern society will require us to investigate how literature came to be conceived as a distinct discipline during the nineteenth and early twentieth centuries—when terms like “society,” “culture,” and “modernity” became important analytic categories, and when intellectual life organized itself into distinct academic disciplines. Accordingly, we will briefly examine the appearance in the Romantic period, in England and America, of a new conception of imaginative writing as a discrete professional discourse and of the literary author as a distinct character or social type. We will then proceed to consider how this Romantic conception of literature was amended as literature became an academic subject in Victorian England and Progressive America. This will give us an impression of the received cultural associations of the “literary,” and so of the broad connotations of urging the introduction of literature into another discipline like law. These connotations in turn will alert the reader to some of the intellectual risks implicit in the Law as Literature trope. After identifying these risks, this introduction will also identify the more promising possibilities of this trope. The introduction will conclude with a summary of the themes, the strengths, and the weaknesses of the particular genres of literary criticism of law examined in this book.

From Letters to Literature

A precondition to the application of literary theory to legal interpretation is their initial separation. Yet before the nineteenth century, literature was less the discrete enterprise it is today. Fiction, poetry, and drama were continuous with philosophy, history, and other learned discourses, including the more intellectually ambitious legal writing, and these discursive forms were all different genres of “letters.” An autonomous category of literature, available for appreciation and criticism, may be said to have developed only with the salience of two conceptual distinctions that now seem self-evident.

The first was a distinction between universal and personal perspectives that enabled a division between scientific discourse on the one hand, and expressive discourse on the other. The second was a functional division of letters into the instrumental and the aesthetic, the prosaic and the poetic, the quotidian and the quotable. Taken together, these two distinctions enabled the emergence of a conception of literature as the presentation for aesthetic appreciation of self-expressions.

This new expressive conception of literature replaced a classically rooted mimetic conception of literature,[6] by which art found its content in the facts of nature or the truths of reason and revelation, and artistry lay in the skillful rendering of a given subject matter. Typical of this view was Sydney’s defense of poetry as morally educative and Pope’s argument that poetry is scientifically valuable because it imitates nature.[7] On these accounts, poetry was neither an invention of the creative imagination nor an expression of the artistic soul. Understanding any writing was a matter of understanding the subject represented rather than the intentions or sensibility of the writer. Even the classical tradition’s interest in rhetorical tactics is better characterized as a craftsmanlike concern with the instrumental link between generic purposes and techniques than any interest in the author’s unique vision and style.

None of this is to deny that Renaissance and Neoclassical writing can now be read as expressive literature—any lyric poetry lends itself to this kind of reading. It is simply to say that in these periods portrayals of personality more likely would have been read as depicting virtues and vices, or aspects of the human soul, or the sentiments appropriate to the speaker’s situation. If classical philosophy prescribed self-knowledge, if Christianity exalted the soul, if stoicism valued personal independence, these traditions still affirmed subjective experience as a window on universal truths. The idea that inner experience was an independent reality, valuable in itself, is a distinctively modern one.

Nevertheless, the expressive conception of literature did build on themes of classical and Enlightenment thought. In legitimating scientific practice, empiricist epistemology appeared to root the authority of knowledge in individual sense experience. Moreover, seventeenth- and eighteenth-century writers conceived the mind as an active synthesizer of all it saw. Following Aristotle and Plotinus, Neoclassical aesthetics assumed that the poetic imagination could not only imitate but even surpass nature. By grasping and recombining nature’s forms, the imagination copied the divine process of creation.[8] The British empiricists acknowledged a role for the imagination in associating sense experiences; and yet in condemning imaginative writing as mendacious rhetoric, they invented the chimerical ideal of a pure language of sense experience that we now associate with logical positivism.[9] Finally, Romanticism could claim one classical precursor in Fonginus, who introduced the concept of “the sublime” into aesthetic discourse. An awe-inspiring quality of dramatic contrast, the sublime was achievable in literature by virtue of the artist’s qualities of soul.[10]

Like expressive writing, aesthetic appreciation by readers was by no means unknown before the nineteenth century. But provoking aesthetic appreciation was seldom seen as the central or defining purpose of a work. Appreciating writing was a matter of appreciating the author’s mimetic skill. Even poetry was seen as an instrument, a form of rhetoric designed to persuade, entertain, ridicule, or instruct. Critical writing about poetry often took the form of how-to advice or commercial endorsement.[11]

While neoclassical criticism did investigate rhetorical techniques for evoking a variety of sentiments such as catharsis[12] and delight,[13] rhetoric’s purpose was not to evoke emotion as such. Rhetoric typically involved deploying familiar generic conventions to reinforce institutions by ritually evoking appropriate sentiments. Indeed, eighteenth-century authors began to complain that the conventions of rhetoric were restricting their emotional palette.[14] On the other hand, empiricists attacked rhetoric from a different direction, identifying its generally conservative function with irrationality. To them, rhetoric’s emotional colors were altogether too vivid. Hume denied that aesthetic appreciation permitted the actual experience, as opposed to the detached contemplation, of emotions.[15] To have an aesthetic experience of language was to be insulated against its persuasive, manipulative power. By the end of the eighteenth century, rhetoric was widely seen as cluttering the minds of readers with sentimental platitudes.

The Wordsworthian ideal of literature as emotion recollected in tranquillity synthesized these curiously inconsistent critiques of rhetoric as insufficiently and excessively emotional. Literature would now express the passion of the author in all its idiosyncrasy and originality, yet this passion would be presented for contemplation rather than evoked in readers. Mediated but authentic passion, rather than unmediated but conventional sentiment, was the true poet’s product. Hence Romantic criticism envisioned a social world populated by individual characters, distinguished by their unique emotional lives; it repudiated the neoclassical vision of society as a chorus harmonized by common manners and conventional attitudes.

The very category of literature—writing presented as art—was a creature of Romanticism, and insofar as we continue to view literature as an autonomous category of writing or experience, we moderns remain committed to Romantic aesthetics. For that reason it is useful to review some of the basic assumptions of Romantic aesthetics, the package of associations evoked whenever we hear the term literary outside of the academic field of literature.

First, Romanticism celebrated the imagination as a form of knowledge.[16] Imagination was knowledge of the particular, the faculty of mind by which the will, the subjectivity, or the personality of individuals could be known.[17] Since imaginative knowledge was unmediated by concepts or categories, it was a faculty of mind both opposed and superior to reason.[18] For Keats, imagination was associated with a critical sensibility that opposed all logic: “negative capability,” the capacity to accept uncertainty and contradiction.[19]

Second, artistic production was identical to imagination, art being an ideal product of the mind, rather than a material product of the hand. Some interpreters of Romanticism have understood the identity of artistic production with imagination to imply that the “real” work of art is the one the artist intended to produce not the one she actually produced, and that a literary work is identical with the meanings intended by the author.[20] Others have denied that Romantic aesthetics posited disembodied meanings.[21] In any case, the identity of art with imagination meant that all human beings were artists, while professional artists were professional imaginers, expert examples of a basic faculty of mind.

Third, imagination entailed innovation. Imaginative works had to be original, not just skillful renderings of familiar themes.[22] As experts in innovation, artists extended the boundaries of human thought. In refurbishing language, for example, poets became “the unacknowledged legislators of the world,” according to Shelley’s influential formulation.[23]

Fourth, the imagination was a distinctively individual faculty. Art therefore expressed something unique about the creator: his or her personality or style. Imaginative works had to be authentic to the author.[24]

Fifth, great works of art therefore manifested the genius of their creators, the extraordinary capacities for innovation inherent in their unique personalities.[25]

Sixth, great art exemplified the aesthetic quality of sublimity—evoking awe at the infinite, generally through dramatic contrast.[26] Sublime effects were often associated with the depiction or evocation of strong emotion—the juxtaposition of euphoria and despair.[27] It was the extraordinary sensibility of the artist, her capacity for unprecedented depths of feeling, that enabled her artistic genius. For Wordsworth the poet was one “endowed with more lively sensibility, more enthusiasm and tenderness, who has a greater knowledge of human nature, and a more comprehensive soul, than are supposed to be common among mankind.” Poetry was a “spontaneous overflow of powerful feelings.”[28]

Seventh, aesthetic experience was nevertheless contemplative; it entailed perceiving but not feeling emotion.[29] Wordsworth’s “spontaneous overflow” was “captured in tranquillity.”[30]

Eighth, artistic expression was therefore a form of sublimation, involving the mastering of great passion and its fashioning into an object for contemplation. In thus disciplining her passions, the artist mastered and re-created herself.[31]

Ninth, in thus simultaneously determining and expressing herself the artist realized her full human freedom and threw off the restraints of necessity. The faculty of imagination was thus central to the Romantic conception of freedom as self-realization.[32]

Finally, tenth, because aesthetic experience presupposed detachment from the passions, and creativity entailed the sublimation and control of the passions, Romanticism celebrated art as a realm apart from the utilitarian pursuit and gratification of desire.[33] For example, Kant distinguished aesthetic judgment, which concerned ends, from teleological judgment, which evaluated means by reference to ends.[34] Moreover, because art involved the mastery of passion, aesthetic pursuits were seen as nobler, as morally superior to utilitarian pursuits. Works of art, almost regardless of content, stood as indictments of an increasingly commercial and industrial society.

Indeed, the very idea of literature depended on the emergence of a purely aesthetic sensibility for receiving writing, defined by contrast to a merely instrumental sensibility. In the modern era, as Jane Tompkins writes, “The imputation that a poem might break out of its self-containment and perform a service would disqualify it immediately from consideration as a work of art. The first requirement of art in the twentieth century is that it should do nothing.”[35] Literature requires a literary public, and just as importantly a philistine public as well. The aesthetic sensibility of Romanticism was at once opposed to and bound up with the calculating, instrumental sensibility of commercial capitalism, and the calculating instrumental discourse of the utilitarian, the classical liberal, or the legal positivist. If, in the discursive world that emerged in the nineteenth century, literature was an aesthetic discourse of subjectivity, law was an instrumental discourse of subjectivity. A common concern of lawyers and literary critics with interpretation followed from the common function of legal and literary language as media for representing subjectivity. To interpret a literary text was to identify the sensibility it expressed, while to interpret a legal instrument was to identify the will it represented.

While Romanticism exalted the artistic sensibility as the antithesis of the commercial sensibility, some literary historians have ironically seen the Romantic image of the artistic creator as the embodiment of the commercial self-interest of producers in an emergent market for intellectual property. As Neil Netanel (skeptically) summarizes this story,

early Romantic notions of “genius,” “originality” and “art” [emerged in] the struggle of eighteenth century publishers and writers to gain political and juridical recognition of a natural property’ right in writings.... On one hand, writers attained the status of holders of proprietary rights only because they came to be seen as originators. On the other, the Romantic persona of the author could not reach fruition until the writer held title to his work. In sum Romantic authorship necessarily carries with it the “possessive individualism” of nascent capitalism.[36]

From this viewpoint, the emergent Romantic author was identical with the new rights-bearing, utility-maximizing liberal subject. And though Netanel gives the Romantic author a less central role in the emergence of capitalism,[37] it is fair to say that Romantic idealism and the persona of the Romantic author would not have emerged without capitalism; and that the Romantic author was an enterprising self-promoter. Yet Romanticism did not endorse capitalism as such, and the self it promoted was not the rational utility maximizer. The Romantic author assumed the role of the dissenter from all that was crass and utilitarian, the architect of a sanctuary from commercial society to which sensitive souls could repair, albeit for a fee.

Literary Canons and Academies 

In late-nineteenth-century England and America, literature became a subject of instruction in secondary schools, colleges, and research universities. This development reflected a judgment that the Romantic aesthetic ideas on which the very category of literature depended were personally edifying and socially useful. Yet as literature became an academic subject, the idea of literature and the practice of literary criticism were also reshaped by the purposes of literary education.

Literary instruction, like the marketing of literature, paradoxically involved the standardization and mass distribution of individuality. Thus, the role of literary instruction within a general education in Victorian England and Progressive America tended to suppress the subversive and individualist themes in literary thought and to highlight literature’s meliorative, “humanizing” import. Rather than protesting the alienation attendant upon modernization, literature would alleviate it by providing a common discourse to unite an atomized society, and by providing an inner world of imagination and sensibility to substitute for the lost world of nature and village. In this way literary instruction promised to grease rather than gum the gears of commerce.

According to a familiar argument, literary canons were part of the nineteenth-century project of inventing national cultures for dissemination to the soldiers and bureaucrats of the new nation-states.[38] Thus, the industrialization of commodity and weapons production, transportation, and communication encouraged polities to organize masses of people into a geographically dispersed commercial economy and state apparatus. Mobilizing and coordinating masses of people entailed inculcating a common language, shared habits and norms, and literacy. It also meant inculcating a common identity to replace local attachments and take the edge off anomie. And if it was difficult to arm masses of men without enfranchising them, it then became necessary to fit them for orderly political participation. All this required primary education on an unprecedented scale, cadres of civil servants and teachers with secondary and even university training, and the assembly of a national cultural canon to be appreciated in new institutional spaces like museums, libraries, opera houses, and secondary schools.[39] Indeed, the first modern literary curricula in Britain appeared not in the universities, but in the local mechanics’ institutes.

As literature and the other arts became subjects of academic instruction, the Romantic sensibility became a unifying as well as an individuating characteristic. Conceived as culture and curriculum, literature became a medium of socialization and the literary sensibility a discipline of decorum. In nineteenth-century England, readers were taught to appreciate rather than analyze literature, to reexperience in the poem’s organic unity the lost harmony of country life.[40] Literary appreciation was a model for tasteful consumption more generally. Reading literature at once taught and conferred civility, as novels offered a world in which gentility was available on the slim budget of a parson’s daughter. While posturing as a protest against the heartlessness and vulgarity of commerce, literature assured readers that their dignity could survive the vagaries of the market, that a cultivated moral sensibility proved as worthy as, and might be rewarded by, a legacy from a prosperous relative.

As the British critic Terry Eagleton notes, literature was in several ways a suitable candidate for this enterprise. As a liberal, “humanizing” pursuit, it could check political bigotry and extremism. It dealt with “universal human values” and thus could absorb and dilute the particular demands of working people. It induced respect for the moral riches of bourgeois civilization and taught the virtues of solitary contemplation rather than collective action, absorbing and transforming the energy of nineteenth-century religious movements.

While nineteenth-century English literature remained morally edifying, it now depicted morality as a matter of independent conscience rather than common moral sense.[41] To the utilitarian vision of subjectivity as sensuality, literature opposed a vision of subjectivity as sensibility. Yet the two were mutually complicitous. If majoritarian democracy was to make utility-maximizing decisions, participants must be taught not only to vote their preferences, but to deliberate the general good.[42] The problem was to get the new middle class to think like shopkeepers on behalf of the nation, not just themselves or their class. Victorian humanists like Matthew Arnold saw literature as a salve for cleavages in the body politic, offering the newly enfranchised a status of cultural dignity in exchange for political docility.[43]

In America, transcendentalist philosophy and religious evangelism paralleled some of the themes of English Romanticism, and the likes of Cooper, Poe, and Hawthorne initiated an American Romantic literature. Yet letters remained more classical than Romantic, and more civic than aesthetic until the Civil War. Still continuous with scientific, political, and legal writing, imaginative writing was part of the task of the self-effacing citizen of a republic. While American classicism emphasized the unity and utility of all intellectual effort, the dominant art form was oratory, which called its audience to a common civic identity in the face of geographic mobility and sectional strife. The model of achievement for American intellectuals was Cicero.

Law was intimately associated with literature in the post-Revolutionary period, as perhaps half of the editors of and contributors to literary periodicals were educated in the law.[44] Lawyers’ courtroom oratory, steeped in classical learning and literary allusion, was a popular form of entertainment. There was also a practical nexus between letters and law: the republican attitude of disinterested citizenship meant that writing could not be a paying proposition, so that the writer needed an income. Then too, the Ciceronian imperative of civic engagement, with its attendant contempt for idle learning, provided ideological support to the material, imperatives of the middle-class litteratus.[45] In the American context, it was more religion than literature that functioned as the Romantic critique of classical values,[46] the evangelical sermon that provided the counterpoint to the Ciceronian oration.[47] Only after the Transcendentalists had fully developed the idea of a private life of self-cultivation as a religious vocation, and only in the face of the civic crisis over slavery, did literature become appealing as a calling rather than as part of a civic life.[48]

In America’s Progressive Era, English literature instruction was promoted as an instrument of maintaining solidarity among divergent social classes.[49] Within the new graduate institutions modeled on the German university, the American English professor of the late nineteenth century might present himself as some kind of philologist. But as a teacher of undergraduates and on ceremonial occasions, he would present himself as a generalist seeking to disseminate an edifying and unifying culture of moral uplift. Perhaps as a result of the apocalyptic experience of civil war, the civilizing mission of literature in Progressive America owed more to the evangelical than the Ciceronian tradition. According to Gerald Graff, the “aim was essentially to adapt the old college ideal of liberal culture to the challenge of modern times,” that is, to the emergence of a philistine elite and a disgruntled proletariat, and to the declining political and economic importance of the cultured class. Generalists “channeled into literature emotions that, a half-century earlier, would likely have been expressed in evangelical Christianity, Unitarianism, or Transcendentalism, investing the experience of literature with . . . redemptive influence.”[50] During World War I, the socializing mission of higher education in literature became even more explicit, as college textbooks presented American literature, duly selected and anthologized, as “a powerful adjunct to training for citizenship” or “a training in the ideals that underlie our faith” and “our democratic institutions.”[51]

In short, by comparison to the British, Americans proceeded from classicism to academicism with barely a Romantic interlude between. When antebellum poets wanted to identify their work with Romanticism they often set it in Europe or wrote from a European point of view. To this day literary Romanticism, with its slightly subversive associations, tends not to be identified as genuinely American. It is not that literature lacks Romantic connotations in the American context, but that by virtue of these exotic connotations, to identify with the literary is to become a figurative expatriate.

The Risks and Possibilities of Law and Literature

The contemporary significance of the category of “literature” is conditioned by the meanings it acquired in its Romantic and academic periods when it was bounded off as a separate category of discourse and research. While the nineteenth-century ideas about literature reviewed here tell us little about the recent literary theory most directly influential on the Law and Literature movement, they do suggest the associations evoked when we are exhorted to experience law in a more literary way. We are urged to express our authentic selves and escape alienating roles and to value passion—especially empathy, mercy, love—over reason and rule. Yet we are also urged to be detached rather than engaged, decorous rather than vulgar, gracious rather than grasping, and to value each other aesthetically rather than instrumentally. We must be prepared to decry big institutions as heartless and small ones as petty and provincial. We are encouraged to be inventive, eloquent, and refined. These exhortations may be delivered in the form of a lecture or address, to a “generalist” audience—lawyers rather than professional literary critics—in a milieu like a law review or law school auditorium often devoted to constitutional debate. If so, the context will emphasize the civilizing and morally edifying functions of literature over its message of personal liberation. On occasions commanding piety—graduations, memorial lectures, bicentennials—paeans to the power of imagination may amount to little more than entreaties to suspend disbelief in received truths and tired institutions. Yet the Law as Literature trope may announce an equally ritualized irreverence, a predictable disillusionment with the merely human origins of human arrangements.

Hence, the characteristic risks of the Law as Literature trope that we refer to throughout this book: First, a sentimentalism in which passion is never cruel or self-indulgent or muddle-headed, invention is never destructive or dishonest, and civility is always inclusive and never elitist. Second, a facile sophistication that mistakes skepticism for criticism and dishonors good causes with bad arguments. Third, a genteel authoritarianism that restricts the aesthetic to the role of ornamenting institutionalized power and becalming the spirit of discontent.

What do we mean by “sentimentalism”? The “sentimental” is a second-order experience of pleasure in, or attitude of appreciation for, the experience of emotion—even of unpleasant emotion. Sentimentality is therefore a kind of pleasure or interest or motive. By “sentimentalism” we mean the indulgence of that pleasure, its pursuit without regard to, or its valuing to the exclusion of, other values. Sentimentalism may motivate one to treat politics, morals, art, or personal relationships as occasions for the experience of the sentimental, to the detriment of other values. Sentimentalism may also motivate one to insulate the experience of sentimentality, or of the emotion that enables it, from critical reflection—to idealize or simplify it. Thus, the pursuit of the sentimental can induce self-deception about the nature of one’s own experience. Finally, sentimentalism can become a standard of judgment that condemns critical reflection as a threat to the experience of the sentimental.

While there may be appropriate settings for the pursuit of the sentimental, sentimentalism is obviously a vice in discursive practices like literary or social “criticism” that presuppose an attitude of critical reflection. A discourse may be sentimentalist either in the sense that it gratifies the sentimental motives of the author, or in the sense that it seeks to win affection or admiration by gratifying the sentimental motives of its audience. The epithet “self-indulgent” accuses the sentimentalist writer of both: of indulging his own sentimentality so as to then congratulate himself for being so sensitive.[52] Much writing about Law and Literature models a sentimentalist persona for the reader to admire and adopt. Signatures of sentimentalism in the field of Law and Literature include applauding certain attitudes or values as natural or authentic, while condemning others as artificial or alienated; attacking reason as incompatible with passion; protesting the inevitable reductiveness of all representations of persons in social thought; and pretending that social life could proceed without institutions, arbitrariness, coercion, and trade-offs among social goods.

What do we mean by “skepticism”? Skepticism is the disposition to view practices as illegitimate unless they can be shown to rest on some justificatory foundation independent of human purposes. In legal thought, skepticism usually demands that legal thought or practice justify itself by reference to some kind of objective knowledge—of moral truth, linguistic meaning, or popular will. Skeptical criticism of law tends to vastly overestimate the role of metaphysics and epistemology in justifying the authority of political institutions and thereby evades political argument and grapples with strawmen. In the field of Law and Literature, skeptical criticism often involves the additional vice of equating the literary with the merely subjective, thereby reducing it to a pejorative epithet.

What do we mean by a “genteel” authoritarianism? In the field of Law and Literature, we will rarely encounter a crude authoritarianism that would automatically align ruling elites with truth, natural right, or good order. But we will encounter subtler forms of authoritarianism that identify elites with aesthetic value. In essence, these strategies seek to preempt a skeptical critique of institutions by sentimentalizing them. Fearing that the subjectivity of value threatens society with intractable conflict and denies legitimacy to governing institutions, scholars of Law and Literature may endow officials with charismatic authority by ascribing to them special aesthetic qualities or powers of aesthetic perception. Or they may encourage an aesthetic appreciation of the legal process as an artistic representation of an idealized democratic politics. In this way, Law and Literature can marshall the aesthetic in the service of political quiescence and thereby degenerate into a cult of good taste.

In sum, the field of Law and Literature is beset by the temptations of sentimentalism, skepticism, and a soft authoritarianism. In the face of these temptations, it tends to fluctuate between fearing subjectivity as an avaricious threat to social peace and exalting it as a fount of authenticity and humane feeling. This antinomian view of the self is bound up with equally dichotomous and reductive characterizations of law as mere Letter—dry, abstract, rigid, cynical, calculating, contentious, profane—and literature as a redemptive Spirit that can humanize, subvert, or ornament the law.

Although Law and Literature scholarship is in constant danger of blundering down one of these impasses, this is not the whole story. While Law and Literature’s failures tend to fall into predictable, even hackneyed patterns, its successes—in illuminating the meanings of a particular legal dispute, fashioning a normative argument adapted to a particular cultural context, or grasping and transcending the limits of a point of view—often elude generalization. To illustrate the uses of literary methods in apprehending and criticizing law, we will have to immerse the reader in the particularities of a diverse array of works.

In addition to illustrating these accomplishments, we will also identify promising possibilities that the Law and Literature movement has yet to fully exploit. Realizing these possibilities will require moving beyond Law and Literature’s traditional projects of justifying legal interpretation and exalting Kantian over utilitarian ethics. We must also be prepared to abandon a view of “the literary” as something extrinsic to law that corrects or redeems or ornaments it. We should recognize that the literary is intrinsic to law insofar as law fashions the characters, personas, sensibilities, identities, myths, and traditions that compose our social world.

The most promising literary criticisms of law are not particularly aimed at defending legal interpretation against majoritarian politics or defending human dignity against utilitarian rationality. Instead they interpret law as a cultural datum and analyze legal processes as arenas for generating cultural meaning. In such “cultural studies” of law, the fixed preferences of economic analysis and the stable self-sufficient persons of Kantian ethics give way to a more complex and contingent picture of the self. Our desires are not simply our own, given in advance of the political, economic, and legal institutions that recognize them or the cultural media available for expressing them. Instead our preferences and interests depend upon the identities socially and culturally available to us. Although socially recognized, these identities are not simply dictated by class or gender or any other invariant social structure. They are often temporary settlements of continuing struggles and negotiations among social actors engaged in projects that are at once strategic and aesthetic, instrumental and expressive. And often these struggles over meaning are legal struggles waged in legal forums.

Cultural criticism of law has rich implications for descriptive and normative legal theory. While much Law and Literature scholarship has opposed the literary to the instrumental analysis that dominates contemporary legal discourse, cultural criticism of law rejects this dichotomy. Instead, it implies that far from excluding aesthetic or expressive considerations, such instrumental policy analysis has a constitutively important expressive dimension that literary reading can illuminate. The best cultural studies of law reveal how policy decisions may reshape the expressive possibilities and social identities available to individuals, thereby conditioning the preferences considered by conventional policy analysis. For example, in contrast to the early Law and Literature scholarship, the newer cultural criticism implies that civil libertarian policies cannot be adequately delineated or defended by reference to the natural rights of individuals to personal autonomy or integrity. If identity is the contingent outcome of socially conditioned choices, it is neither natural nor, in the traditional sense, “personal.” Cultural criticism of law demands that normative argument defend institutions on the basis of the kind of identities they will cultivate rather than their ability to protect or accurately represent existing personalities.

In short, we will encourage a legal scholarship that explores and enhances the expressive and compositional power of legal thought and practice in the specific political and economic worlds in which they operate. Such a scholarship recognizes the literary as a constitutive dimension of law rather than a redemptive supplement. If law is inevitably literary, the call to make it so is not just pointless but deceptive: it implies that if only law becomes more literary, criticism of law will no longer be necessary. To recognize the constitutively literary dimension of law is not to commend law as inevitably humane or redemptive, however. Law’s creations may starve the poor or demean the weak; they may arise out of struggle, strategy, and violence. They demand critical evaluation. Nevertheless, laws, legal judgments, legal arguments, and legal transactions all have expressive meaning, and to miss law’s meaning is to miss a part of what needs criticism. Thus, there is no reason why the literary reading of law must be laudatory. To say that law is literary is also to admit that literature is, like law, an arena of strategic conflict. Indeed, some of the most illuminating contemporary criticism of imaginative literature recognizes that literature is a social practice conditioned by institutional conventions, social power, and practical aims. Literature may be a realm of artifice and invention, but so is the confidence game; not every expression of creativity exalts the human spirit. Whether any particular literary work is redemptive or humane must be an open question if reading is to qualify as honest inquiry. Similarly, the redeeming qualities of any legal institution must remain in question if literary criticism of law is to be an honest job.

Genres of Criticism

In his Economic Analysis of Law,[53] Richard Posner showcased the many applications to law of a single theory, reduceable to the axioms that people pursue self- interest, that price is a function of supply and demand, and that transactions put goods to their most valued uses. Ours is a different kind of book devoted to a different kind of inquiry.

First, it is not a brief for Law and Literature scholarship. Such works abound, and the reader will see their arguments considered critically here. But neither is it—like Posner’s Law and Literature: A Misunderstood Relation[54]—a polemic against such scholarship. It is an interpretive and critical work, using some of the very methods it reflects upon, to understand and refine the Law and Literature enterprise.

Second, unlike the economic analysis of law, the literary criticism of law is not a single theory. Many different kinds of scholarship animated by different conceptions of literature are considered here. Nor is literary criticism “theoretical” in the same way that economic analysis is—as is commonly said, the humanities are distinguished from the sciences by their concern with the particular. A practice of literary criticism cannot be reduced to a set of axioms or abstracted from the texts it reads. Insightful reading is a sensibility rather than a technique, developed more by immersion than instruction. Thus, “learning” the field of Law and Literature means abiding with the many authors who have made it their own, grasping their intellectual projects and absorbing their aesthetic sensibilities. Accordingly, this book will expose you to many styles of reading, each of course filtered through our own.

For this book is not merely an endorsement of the newer, “cultural” criticism of law and legal thought described earlier—it is also an example of it. We have endeavored to place the works of legal and literary scholarship we explicate in relevant cultural and intellectual historical contexts. While the literary criticism of law is not a single theory, it can be understood as a series of genres—discrete, historically specific social practices of criticism, organized by recurrent purposes and interests, canonical texts, problems and themes, and characteristic rhetorical tropes, voices, and forensic strategies. The different “literary criticisms” of law explicated and critiqued here all share the single, fertile rhetorical figure of the Law as Literature trope. Yet each genre hinges this law-literature analogy on a different image of literary activity and so promotes a different variant of the Law as Literature trope.

The first genre we take up is the hermeneutic criticism of law, which treats interpretation as the basic mode of literary action. Within this genre, the Law as Literature claim becomes a claim that law is most fundamentally a practice of interpretation. This was the first and remains the most familiar genre of Law and Literature scholarship. To understand why this genre developed is to understand how legal scholars came to see literary criticism and literary theory as relevant to law.

Chapter 1 of this book, “Interpretive Crises in American Legal Thought,” offers such an explanatory account of the origins of the Law and Literature movement. This account explains how, and with what assumptions, antebellum American lawyers developed a sophisticated view of law as an interpretive activity that retained some relation to the Ciceronian ideal. It recounts the increasing stresses on that hermeneutic model of lawyering as the Civil War approached, and the cultural changes that later encouraged Progressive Era lawyers to see themselves more as scientific observers of American society than as authoritative interpreters of American political institutions. It reveals that Progressive lawyers increasingly identified a creative and aesthetic dimension to the judicial tasks of observing and representing society. Yet their firm sense that law properly served prevailing social custom and consensus prevented any great anxiety about the legitimacy of the judicial imagination. Indeed, they were more likely to criticize conservative judicial decisions as unimaginative than as overly inventive.

Throughout this period, legal interpretation was seen either as a fairly conventional exercise or as a matter of putting texts to discernible social purposes. Interpretation might require skill, but it was not an impossible matter of determining inherently indeterminate meanings. Chapter 1 argues that only with the civil rights revolution did reformist lawyers lose their confidence that legal interpretation— particularly constitutional interpretation—could be grounded in social custom or majority opinion. If the judicial guardian of minority rights could not be a social scientist, she needed some other identity—a void that the idea of the judge as artist might fill. And if the meaning of the Constitution’s vague civil rights clauses could no longer be supplied by social consensus, it would have to be invented. A residual majoritarianism suggested that judges, like artists, could have only persuasive rather than coercive power over the public. Lacking final power, judges could only engage the public and its political representatives in a process of dialogue and hope to win their way by charm.

In the meantime, American literary criticism, partly under the sway of continental influences, had evolved in the direction of celebrating the reader as the true creative source of literary meaning. Chapter 2, “Hermeneutic Criticism of Law,” summarizes these developments and shows how they were appropriated by legal scholars. It shows how continental “hermeneutics” and American “Reader-Response” theory seemed suited to explain the new practice of countermajoritarian constitutional interpretation as a noble and necessary act of literary invention. In his or her role as constitutional interpreter, the judge became an example of a previously unrecognized type of literary artist: the literary critic. The judge as literary critic metaphor was the central trope of the hermeneutic criticism of law, around which was organized a largely epistemological debate about the legitimacy of legal interpretation. How, if interpretation was unconstrained by text or authorial intent, could it be objective? If not objective, how could interpretation be impartial; and if not impartial, how could it be fair? Yet if constrained by social convention, how could interpretation be fair to the marginalized and despised?

Chapter 2 expresses our doubt that debate about the validity or justice of legal interpretation can be usefully conducted at this level of generality: most legal interpretation does not raise the fundamental questions about American society that interpretations of the Civil War Amendments must address. We suggest that a shared sense of interpretive crisis is itself an internal interpretive judgment about discord in a particular institutional tradition. As an interpretive judgment, such a sense of crisis cannot be taken as evidence that interpretive judgments are inherently baseless. We will conclude that the debate over the objectivity of legal interpretation is therefore an example of the skeptical misuse of literary theory. A genuinely “hermeneutic” criticism of legal institutions would have to criticize them from within the particular traditions, history, and culture of an actual society.

By reconstructing the tradition of American legal thought about interpretation (in chapter 1), and locating the Law and Literature movement in relation to that tradition (in chapter 2), we provide an example of such internal criticism. We argue that the American legal tradition has been philosophically sophisticated in its appreciation of the role of custom and convention in the development of legal meaning, although ethically blind in its accommodation of the racism in American custom and culture. By contrast, recent scholarship on legal interpretation has often made “language” and “meaning” into philosophical pseudo-problems and thereby obscured the specific political and cultural sources of incoherence in the American constitution. But the fault, we suggest, lies not in language, which is ordinarily a tolerably useful tool. Instead, the resistance of the Civil War Amendments to interpretation results from the painful fact that the American polity is constituted as much by its history of racial hierarchy and exclusion as by the textual promise of racial equality. In the face of these painful contradictions, it may be that no morally satisfying interpretation of the American polity is possible. If so, this is no idle methodological quibble, but an urgent challenge to the authority of American law and to our personal identity and political obligation as Americans. In the context of this interpretive crisis, scholarly assertions of the inscrutability of language in general serve to excuse the incoherence of the American Constitution in particular, and so to insulate our identification as Americans from critical reflection. Thus, the interpretation debate may have, ironically, used skeptical arguments to sentimental ends.

A second genre of literary criticism of law, reviewed in chapter 3, treats the paradigmatic literary activity as the telling of stories. Hence, the Law as Literature trope takes the more specific form of law as narrative. In the narrative criticism of law, “narrative” tends to connote particularity rather than abstraction, emotional involvement rather than detached rationality, creativity rather than technicality, and fluidity rather than rigidity. Often the Law as Narrative trope contrasts a redemptive vision of law as life-giving spirit with an indictment of law’s actuality as desiccated letter. In this line of writing, law’s redemptive function is to bear witness to the pathos of human suffering. On the other hand, the Law as Narrative trope may play a debunking role, embarrassing law’s aspirations to rationality and regularity with an exposure of lawyers’ trickery or judges’ inconsistency. Rather than connoting the concrete truth of human suffering, story telling may stand for the skillful distortion of reality and the emotional manipulation of an audience. A third alternative presents narratives as neither authentic self-expressions nor deceptive stratagems, but as unauthored myths or stereotypes that circulate through a culture like currency or contagion, shaping the consciousness of all who are not immune. Law may be portrayed narratively as a story of progress or corruption, of learning or of falling away from timeless verities and original understandings.

Narrative scholarship is largely a debate over the cognitive worth and political significance of narrative in law. Does it reveal or distort? Is it reliable? Does it lull us into acceptance of oppression or awaken us to resistance? Does it promote self-deception or self-understanding? One assumption found on all sides of this debate is that narrative—whether redeeming or corrupting—is an alien element in law.

Chapter 3 will conclude with a critical examination of this assumption. We will consider a variety of claims that law and narrative are intrinsically related: that legal reasoning has an inherently narrative structure, for example, or that such paradigmatic narrative forms as the novel and the history presuppose the legal institutions of the modern state. In particular, we will explore an argument that legal claims involve implicit assertions of the authority of some legal system; and that such claims to sovereign authority entail the invocation of an historical narrative. This argument reprises a theme from chapters 1 and 2: that to assert or recognize the authority of law, to identify as the agent or citizen of a sovereign state, entails an act of literary imagination. Like interpretation, narration is inherent in justifying political obligation and so is intrinsic to law. Both social orders and personal identities are anchored by narratives, and linked through narratives, to one another. Narratives therefore do not stand outside social authority—they are part of it. So the value of the narrative criticism of law lies not in invoking some abstract idea of narrative to challenge law, but in examining, critiquing, and revising the particular narratives embedded in law, and the identities and institutions these narratives enable.

Chapter 4 considers a genre that we call rhetorical criticism of law. Such rhetorical criticism presents the literary aspect of law as the activity of persuasion, or focusing more on the hearer rather than the speaker, the activity of deliberation. Its recurrent tropes then are Law as Persuasion, Law as Deliberation, and Law as Dialogue. More than any other genre, rhetorical criticism draws its inspiration from classical literature and philosophy. It is closely tied to the ideal of a civic republic in which politics engages all citizens but in a disinterested way. The virtuous citizen experiences politics as an intellectual debate or dialogue rather than a contest of opposing interest groups. The organizing question for rhetorical criticism of law is how the civic attitude is to be encouraged in a modern society premised on the subjectivity of value. Rhetorical criticism of law draws from the classical rhetorical tradition a concern with how language affects the emotions of the hearer, and an identification of the good with the maintenance of virtuous character rather than achievement of good results or enforcement of just rules.

Yet rhetorical criticism combines these ancient concerns with certain modern ones. First, if modern society sees politics as a realm of self-interest ungovernable by reason, it sees art as a realm of disinterested contemplation. If we can no longer credibly ask citizens to adopt an attitude of rational detachment in politics, perhaps we can replicate classical virtue by encouraging aesthetic detachment in politics. Second, while classical philosophy valued the deliberative character as a substantive good, some variants of modern liberalism value the deliberative process as a just procedure for reconciling opposed interests. Thus, classical ideas of the good can be justified to modern audiences as instruments for achieving the right. Third, the rhetorical tradition’s interest in audience sentiment and classical philosophy’s concern with the development of character both resonate with reader-response theory’s interest in the experience of the reader over time. Finally, the classical tradition’s moral interest in personality and emotion can be presented to modern audiences as a therapeutic concern with emotional health.

The problem confronting this project of rhetorical revival is the loss of the organic political culture of shared values and virtues that classical rhetoric presupposed. The more conservative proponents of rhetorical revival treat it as an elite project of cultural preservation—conserving classical wisdom in a licentious age and attempting to quietly maintain its influence over rulers. But many enthusiasts of rhetoric in law are liberal pluralists, who see the orator statesman not as the exponent of an organic culture or of eternal verities, but as a kind of literary creation—a character who models an ethos for the edification of an audience.

The values proffered by the liberal rhetorician may be the liberal process values of tolerance and open-mindedness, or the Romantic values of creativity and independence of mind. In either case, there will be a tension between the liberal content of these values and their rhetorical presentation as virtues for emulation. Thus, the efforts of some liberal rhetoricians to model vague virtues like judiciousness and impartiality, without favoring any particular conception of the good, can produce a hollow shell of rhetoric, principled in tone without particular principles.

But the classical model of eloquence would seem to require the speaker to identify with some conception of the good. To present one’s self as a model of virtue is to accept the risks of normative commitment. These include submitting one’s own character for judgment and claiming the authority to stand in judgment of others. The rhetorician admonishes her audience to govern itself according to definable virtues, not just to express creative impulses or authentic desires. In so doing the rhetorician implies that the values her audience adopts, and the character it develops, are matters of public and political concern. By treating character and culture as political questions, the rhetorical tradition points to a more profound conception of politics than that commonly associated with liberal pluralism, but one potentially threatening to cherished freedoms. By extending the domain of the political to culture and character, the rhetorical criticism of law points to the possibility of a more complete cultural criticism of law, which evaluates not just the rhetorical personae lawyers adopt, but the legal institutions, legal decisions, and legal forms that shape character and identity in our society.

Chapter 5 examines a genre we call “deconstructive criticism of law.” This genre of literary criticism of law takes its inspiration from the work of literary critic and philosopher Jacques Derrida, who in recent years has turned his attention to law. Most practitioners of deconstruction in law are on the left wing of the legal academy, either “critical legal scholars” or feminist scholars. Deconstructive criticism treats law as no more and no less literary than any other use of language. One of its recurrent tropes is Law as Language. However, it draws an additional trope from Derridean deconstruction: Language as Literature. Deconstructive critics treat all language use, or “signification,” as figurative rather than literal. In sum, deconstructive criticism represents law as an inherently literary practice of signification. In deconstructive criticism of law, the fact that signification is figurative is often treated as an indictment: language distorts or obscures what it represents. Above all it reduces the richness and complexity of the experienced world. Law, as a form of signification—as the letter—is therefore inherently reductive. This criticism generally takes two forms, one epistemological and one ethical.

The epistemological version usually appears as part of an argument that legal rules do not have clear or determinate implications for future cases. Legal standards condition results on “subjective” mental states, but these can only be known through inherently reductive “objective” indicia. The law’s inevitable gap between rule and purpose, letter and spirit, is a recurrent source of (presumably undesirable) flexibility. Chapter 5 suggests that much of this criticism amounts to facile skepticism. Because it applies equally to all legal standards and institutions, such epistemological deconstruction cannot effectively criticize any particular institutions. Moreover, because it portrays legal language as always equally conflicted and incoherent, such deconstruction cannot explain why legal actors sometimes experience legal language as in crisis and sometimes do not.

Ethical deconstruction finds different implications in the reductiveness of legal language: first, that representations of the public interest or of society in legal settings will always be partial and partisan; second, that the groups or “voices” excluded from representation will often be the weakest and most oppressed. Deconstruction can be used to show that such voices have been excluded and to challenge such exclusion as itself oppressive “violence.” The difficulty is that deconstructive premises imply that such “exclusion” or partiality is inevitable in any use of language, so that there can be no ethical imperative to be all inclusive. Deconstruction appears to be at best an ornament if not an actual impediment to arguments for greater political participation by the underprivileged. Indeed, the principal target of Derrida’s own polemics has been the ideal of participatory democracy, which he sees as dangerously populist.

But, that deconstruction adds little to the work of its exponents in the field of law does not drain their work of interest. Much of this work builds on other sources—cultural feminism, pragmatist epistemology, the Frankfurt School, Foucault—to mount illuminating accounts of the cultural place of law.

Chapter 6 explicates the cultural criticism of law discussed earlier in this introduction. This genre of criticism treats legal disputing and transacting as occasions for the representation of self, others, and society. It equates the literary with the depiction of character and the delineation of a social landscape. In this way, the cultural criticism of law metaphorically extends the concept of literature from the presentation of such depictions for aesthetic consumption to the everyday practical activity of staking claims to desirable roles and identities or interpreting those roles in advantageous ways. Law, then, is literary insofar as it involves claiming, exchanging, and distributing not just resources, but also cultural meanings. Law as Representation is this genre’s constitutive trope. Chapter 6 reviews some of the intellectual sources of this genre in the structuralism of Michel Foucault, the pragmatic cultural sociology of Pierre Bourdieu, the normative aestheticism of Nietzsche, and the recent Cultural Studies and New Historicism movements in literary studies. It then considers examples of cultural representation in two sorts of legal settings. First, it reviews scholarship “reading” the representations of parties in disputes—trials, but also appellate litigation, feuds, and street confrontations. Second, it considers examples of the representation of character, credit, and value in commercial and financial law. It concludes not only that cultural meaning is a dimension of law to which legal and policy analysts should attend, but also that law is an arena for contesting, negotiating, and fashioning meaning that should be of interest to any student of culture.

While chapter 6 explicates the cultural criticism of law, the entire book illustrates it, beginning with this introduction. And the entire book’s success in explicating and evaluating the cultural meaning of the various literary criticisms of law will provide our strongest argument for the efficacy of this approach.

This introduction has for the most part stressed the differences among the various genres of literary criticism of law, and particularly between cultural criticism and all the others. Yet as the chapters to follow show, there are important similarities as well. All five genres of criticism discussed in this book portray law as a practice of composing a kind of literary artifact—a reading, a story, a performance, a sign, or a representation. Since each of these portrayals is really a simile or metaphor or trope, none is necessarily inconsistent with any other. That making a legal argument is like telling a story need not entail or imply that it is unlike interpreting a novel or performing a dramatic role. While the different genres of criticism portray law as the composition of different kinds of artifacts, each portrays law as a practice of composition; and the different accounts they give of the practice of literary composition exhibit a certain family resemblance: each can be described as a process of appropriating and reshaping old materials.

This is perhaps most obviously true of the Law as Interpretation trope on which the Hermeneutic criticism of law relies. An interpretation presupposes a text, or some other object of interpretation, to be understood, applied, appreciated, and brought to life.

The derivative character of narration is less obvious than the derivative character of interpretation, since we sometimes think of narrative fiction as pure invention, as the creation of an imaginary world out of whole cloth. Yet as the chapter on narrative criticism underscores, narration works on and modifies many kinds of received materials, including both actual experience and generic conventions. Thus, to portray law as narration is also to portray it as a process of reusing what is already at hand.

The same is true of the Law as Rhetoric trope, which treats law as an extension of classical oratory. Classical rhetoric expected orators to persuade and inspire by modeling an exemplary character. In this sense, the practice of rhetoric involves the dramatic performance of a conventional role. Sometimes the rhetorical criticism of law focuses on a different process of appropriation and transformation— the process of modifying opinion, reconciling antagonism, or transcending self-interest through deliberative dialogue.

Deconstructive criticism portrays law as a practice of signification. This activity also is conceived in dual terms. From a deconstructive perspective, any speech act relies on, but also modifies and shows the instability of, the preexisting network of significance we call a language. By analogy, the practice of legal argument “deconstructs” any pretense that law is a static or self-contained code of norms.

Finally, the cultural criticism of law portrays law as an arena within which participants contest how persons, groups, institutions, and values are to be represented. In so doing, they interpret texts, retell and reframe narratives, perform characters, and use and reshape languages. But cultural criticism of law emphasizes that legal actors do all of these and more. The medium in which law composes and is composed is not limited to authoritative legal texts, or even to language. It includes characters, identities, traditions, institutions, and markets. And the composers are not autonomous Romantic artists. Composition is a collective political process, a kind of negotiation.

In sum, the five genres of criticism discussed in this book share a view of law as a compositional process that involves appropriating and reconfiguring available cultural materials. The hermeneutic, narrative, rhetorical, and deconstructive criticisms of law portray this process in ways that are limited, and potentially limiting, if any of them is taken as an exhaustive portrayal of law’s composition. Our aim is not to repudiate these genres of criticism, but to incorporate them into a more flexible and eclectic understanding of law as a practice that constantly appropriates, reproduces, and reshapes a culture.


Notes

[1] See Thomas Grey, The Wallace Stevens Case: Law and the Practice of Poetry (Cambridge: Harvard Univ. Press, 1991). Grey takes on the daunting task of finding connections between law and literature in the work of a great poet who happened to be a lawyer-businessman, and who tended to deny, and rarely explicitly manifested, any connection whatsoever between his poetic imagination and his mundane work of legal and business analysis. Grey discovers in Stevens’s poetry a lesson for lawyers about the value of a resilient pragmatism. Rather than sentimentally offering literature as a corrective to law, Grey sees poetry as a medium to help lawyers build a bridge between rule-of-law legal classicism and equity-favoring Romanticism. He argues that literature can teach lawyers the crucial art of keeping antithetical premises in mind and recognizing the limits of one’s necessarily reductionist conclusions. He sees in Stevens’s poetry a dialog between realism and idealism, with intimations of, but not the vain hope of finally achieving, what Grey calls an “integrative perspectivism.”

[2] Wai Chee Dimock, “Criminal Law, Female Virtue, and the Rise of Liberalism,” Yale Journal of Law and the Humanities 4 (1992): 209, 215-16; see Wai Chee Dimock, Residues of Justice: Literature, Law, and Philosophy (Berkeley: Univ. of California Press, 1996), 11-27.

[3] Dimock, “Criminal Law, Female Virtue,” 217.

[4] Tony Sharpe, “(Per)versions of Law in Literature,” forthcoming in Law and Literature, ed. Michael Freeman and Andrew Lewis (Oxford: Oxford Univ. Press, 1999).

[5] Ibid.

[6] M. H. Abrams, The Mirror and the Lamp (New York: Oxford Univ. Press, 1953).

[7] Sir Philip Sydney, “An Apology for Poetry,” in Critical Theory Since Plato, ed. Hazard Adams (New York: Harcourt Brace Jovanovich, 1992), 155-77.

[8] Samuel Henry Butcher, Aristotle’s Theory of Poetry and Fine Art, 4th ed. (New York: Dover Publications, 1951), 13-20; Plotinus, The Six Enneads, trans. Stephen MacKenna (London: Faber & Faber, 1966); Sydney, “An Apology for Poetry”; Joseph Addison, “On the Pleasures of the Imagination” in Adams, Critical Theory since Plato, 288-92.

[9] See John Locke, An Essay Concerning Human Understanding (Menston: Scholar Press, 1970); Edmund Burke, A Philosophical Inquiry into the Origin of Our Ideas of the Sublime and Beautiful, ed. J. Boulton (Oxford: Basil Blackwell, 1987); David Hume, “Of the Standard of Taste,” in Adams, Critical Theory since Plato, 314-23. For a discussion of pure language of observation see Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton Univ. Press, 1979).

[10] W. Rhys Roberts, ed. and trans., Longinus on the Sublime (Cambridge: Cambridge Univ. Press, 1933), 23-40. In what is generally considered a precocious anticipation of Romanticism, the early-eighteenth-century writer Edward Young urged the spirit, taste, and genius of past authors as the poet’s proper object of study and imitation. Edward Young, Conjectures on Original Composition (Leeds: Scholar Press, 1966).

[11] Jane P. Tompkins, “The Reader in History: The Changing Shape of Literary Response,” in Reader-Response Criticism: From Formalism to Post-Structuralism, ed. Jane P. Tompkins (Baltimore: Johns Hopkins Univ. Press, 1980), 201-32.

[12] Aristotle’s Poetics, ed. Stephen Halliwell (London: Duckworth Press, 1986).

[13] John Dryden, An Essay of Dramatic Poesy, ed. T. Arnold (Oxford: Clarendon, 1964).

[14] Pierre Corneille, “Of the Three Unities of Action, Time, and Place,” trans. Donald Schier, in The Continental Model: Selected French Critical Essays of the Seventeenth Century, rev. ed., ed. Scott Elledge and Donald Schier (Ithaca: Cornell Univ. Press, 1970), 101-15; Dryden, An Essay of Dramatic Poesy.

[15] Hume, “Of the Standard of Taste.”

[16] Immanuel Kant, Kant’s Critique of Aesthetic Judgement, trans. J. C. Meredith (Oxford: Clarendon, 1911), 30-34, 58-60, 86-89; Percy Bysshe Shelley, “A Defense of Poetry,” in Adams, Critical Theory since Plato, 499-513.

[17] See Arthur Schopenhauer, The World as Will and Idea, trans. Richard Burdon Haldane and John Kemp, vol. 1 (New York: Humanities Press, 1964).

[18] See Harold Bloom, Commentary to The Complete Poetry and Prose of William Blake, ed. David V. Erdman and Harold Bloom, new rev. ed. (New York: Anchor-Doubleday, 1988), 894-970; Samuel Taylor Coleridge, Biographia Literaria, ed. John Shawcross (London: Oxford Univ. Press, 1954), 1:66-73; Friedrich Wilhelm von Schelling, “On the Relation of the Plastic Arts to Nature,” in Adams, Critical Theory since Plato, 446-58.

[19] John Keats, “Letter to Georgia Keats and Thomas Keats,” in Selected Letters of John Keats, ed. Lionel Trilling (New York: Farrar, Straus, and Young, 1951), 91-92.

[20] William K. Wimsatt and Monroe C. Beardsley, “The Intentional Fallacy,” in Adams, Critical Theory since Plato, 1005-21 (attributing these implications to Romanticism.)

[21] Benedetto Croce, Aesthetic as Science of Expression and General Linguistic, trans. Douglas Ainslie (New York: Noonday, 1963).

[22] Georg Wilhelm Friedrich Hegel, vol. 1, “The Philosophy of Fine Art,” ed. and trans. F. B. Osmaston (London: G. Bell and Sons, 1920), 394-405.

[23] Shelley, “A Defence of Poetry,” 513; see also Ralph Waldo Emerson, “The Poet,” in Adams, Critical Theory since Plato, 545-54.

[24] See Coleridge, Biographia Literaria; Schelling, “On the Relation of the Plastic Arts”; Emerson, “The Poet.”

[25] See Kant, Critique of Judgment, 168-83, 191, 226; on art as embodiment of the artist’s spirit see Hegel, “Philosophy of Fine Art,” 1:380-91.

[26] Kant, Critique of Judgment, 90-134.

[27] See M. Royce Kallerud, “Rousseau’s Ambivalent Sublime,” The Wittenberg Review (spring 1991): 34; Thomas Weiskel, The Romantic Sublime (Baltimore: Johns Hopkins Univ. Press, 1976).

[28] William Wordsworth, Preface to Lyrical Ballads, ed. Michael Mason (London: Longman,1992), 82.

[29] See Kant, Critique of Judgment, 123-26.

[30] Wordsworth, Preface to Lyrical Ballads, 32.

[31] See Friedrich Schiller, Letters on the Aesthetic Education of Man, ed. and trans. Elizabeth M. Wilkinson and L. A. Willoughby (Oxford: Clarendon, 1967), 21, 79, 83, 93. 103, 119, 125-27, 141, 153, 167, 189.

[32] Ibid., 17-21, 95, 117, 147, 161, 183-88, 205, 213, 219.

[33] See Hegel, “Philosophy of Fine Art,” 65-87; John Stuart Mill, “What Is Poetry?” in Mills Essays on Literature and Society, ed. J. B. Schneewind (New York: Columbia Univ. Press, 1965), 102, 106-7, 109-10.

[34] Kant, Critique of Judgment, 19-35.

[35] Tompkins, “The Reader in History,” 210.

[36] Neal Netanel, “The Law Literature Critique of the Law of Literature” (unpublished ms., 1993) (summarizing the arguments of Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of Authorship,” Duke Law Journal (1991): 455; Mark Rose, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship,” Representations 23 (1988): 51; Martha Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions for the Emergence of the “Author,” Eighteenth Century Studies 17 (1984): 425, 429-31.

[37] Netanel argues that the emergence of markets in commercial instruments and investment securities enabled the recognition of other forms of intangible, including intellectual, property. “The Law Literature Critique.”

[38] Raymond Williams, Culture and Society, 1780-1950 (New York: Columbia Univ. Press, 1983); Ernest Gellner, Nations and Nationalism (Oxford: Blackwell, 1983).

[39] Guyora Binder, “The Case for Self-determination,” Stanford Journal of International Law 29 (1993): 223, 232-33; Guyora Binder, “Post-totalitarian Politics,” Michigan Law Review 91 (1993): 1491, 1503.

[40] Terry Eagleton, Literary Theory (Minneapolis: Univ. of Minnesota Press, 1983), 17-53.

[41] Ibid., 27.

[42] Mill, “Considerations on Representative Government,” in Essays on Politics and Society, vol. 19 of Collected Works of John Stuart Mill, ed. J. D. Robson (Toronto: Univ. of Toronto Press, 1977), 371, 435-81.

[43] See generally Matthew Arnold, Culture and Anarchy (New York: Norton, 1972); see also Walter Horatio Pater, Studies in the History of the Renaissance (London: Macmillan, 1922).

[44] Robert A. Ferguson, Law and Letters in American Culture (Cambridge: Harvard Univ. Press, 1984), 92 (discussing Theophilus Parsons and Gulian Verplanck).

[45] Ibid., 73-75.

[46] See Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War (New York: Harcourt, Brace & World, 1965), 3-35.

[47] See John P. Diggins, The Lost Soul of American Politics: Virtue, Self-interest, and the Foundations of Liberalism (New York: Basic Books, 1984).

[48] George Fredrickson, The Inner Civil War: Northern Intellectuals and the Crisis of the Union (1965), 7-12, 19-21. An exception who underscored the rule was Longfellow, whose 1839 Hyperion lamented America’s inhospitability for poetry.

[49] See Gerald Graff, Professing Literature (Chicago: Univ. of Chicago Press, 1987).

[50] Ibid., 85.

[51] Ibid., 131.

[52] This sort of gratification in being capable of sentimentality is actually a third-order experience of emotion.

[53] Richard Posner, Economic Analysis of Law (Boston: Little, Brown, 1973).

[54] Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard Univ. Press, 1988).

 

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